Presidential Appointments of Supreme Court Justices
Although, Hamilton does give the power to the senate of body of congress to reject any nomination thereof made by the President. He argues the Senate could not be tempted to reject a nominee for the preference of another because they simply do not have the power of nomination. He goes on to explain, they could not be assured the second nominee or any subsequent nominee by the president would be of someone ideologically similar. Due to the change in politics and American Government over time, critics often suggest modifying the Framers’ intentions because of several factors; The rise of parties has made the system more political than the Framers expected, the politics of the process obscures the merits of the nominee and the greatly increased power of the modern court on the lives of the American public demands a system in which Justices are chosen based on merits and qualification over ideology and philosophy. Hamilton in the Federalist Papers, argued why the Constitutional Convention chose the method of presidential nomination and senatorial confirmation of federal judges by comparing it with three alternatives. First alternative would place the power in the hands of the people themselves. Hamilton argues against the idea of collectively assembling citizens and asking them to coordinate in selecting judges. Second alternative would create an assembly of citizens to appoint justices of the Supreme Court. Hamilton argues this idea could lead to partisan politics, partial interest and corruption at the expense of the public good. Finally, the third alternative was symbolic towards Hamilton’s ideological view of governing, suggesting giving the appointment power to a single individual, presumably the president himself.2
Prior to Hamilton’s theoretical view of appointments, Charles Pinckney and Roger Sherman advocated for the origins of what the Virginia Plan had stated which gave the appointment of Justices of the Supreme Court to the entire body of congress. James Madison was strongly opposed to this idea as he argued, that many members of congress were not competent judges of the requisite qualifications. Instead he proposed the idea of allowing only the body of the Senate to be the sole appointers of Justices for the Supreme Court. He argued because they were a more elite and less numerous body, that they then can nominate and appoint judges without their partialities getting in the way. Ultimately using the ideas of both Alexander Hamilton and his proposal of a sole individual appointing justices, along with James Madison’s proposal of electing the Senate body of congress to make such appointments, the convention compromised to what is now written in the Constitution as the “”Appointment Clause””.
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Established in the constitution, Justices on the Supreme Court hold office, “”during good behavior,”” effectively receiving lifetime appointments to the Court. Such job security given to Justices through constitutional design is to ensure the independence of the Judiciary, which includes the Supreme Court of the United States, from the president in the executive and Congress in the legislative branches of government. Similar to many high-ranking government positions, the Justices of the Supreme Court may be removed from office through impeachment from the House of Representatives and the conviction of the Senate. Only one sitting Justice has ever been impeached by the House, which occurred in 1804 but remained on the bench as he was acquitted by the Senate. Lifetime appointments indicate a desire for impartiality among the Judiciary branch of government.
Lifetime tenure and the prestige of the office often result in Justices assuming the role for as long as possible. As a result, it is not uncommon for vacancies to occur from the consequence of the death. For example, 14 of the 34 vacancies that occurred between 1900-1950 occurred as a result of a Justice dying while serving in office.4 Most recently, Justice Scalia passed away leaving a vacancy open and highlighting the difficulties of having an even numbered Justice seats. Between 1946 and 1954 all vacancies that occurred were due to the death of a sitting Justice. This trend subsided after 1954 with only 2 out of the 24 vacancies occurring on the Court were a result of a Justice dying. Since 1954, 83% of vacancies or 20 of 24 justice seats were vacant as a result of Justice retirements. Appointments can also occur by way of elevating associate justice of the court to Chief Justices when the sitting Chief Justice decides to resign, retire or unfortunately passes away during his or her tenure. An Associate Justice is elevated to Chief Justice by the president and then must nominate to fill the vacant seat of the Associate Justice. President Reagan is the most recent president to fulfill this duty in 1986. The Chief Justice at the time, Justice Burger announced his resignation to the president via open letter. President Reagan then nominated then Associate Justice William H. Rehnquist to Chief Justice and subsequently nominated Antonin Scalia as the replacing Associate Justice. After analyzing the background of what the Framers believed would best suit the government in the appointment process, it is equally important to understand the affects and changing dynamics of American politics and governing that should require a two-thirds vote from the Senate to appoint a Justice of the Supreme Court.
Research on the Appointment Process
Perhaps because appointments to the Supreme Court are among the most important decisions presidents make, political scientists have closely studied the various stages of the appointment process. The initial stage is the nomination stage of the process where presidents are studied why they choose a certain nominee with certain ideologies, why they delay the process and generally how they attempt to balance various factors when making their decision.10 The second stage, because it is more visible to the public, scholars have paid more attention to the Senates actions during the confirmation stage. The aggregate outcomes of Senate votes accounts to partisan and institutional factors that affect votes. Similarly, certain appointments that are seen to informally change the dynamics of the ideological stance of the court generally fail during the confirmation stage.10 Moving from an aggregate focus to more of an individual basis of studying voting trends, Epstein et al. suggests constituents can influence votes of nominees.6 Shipan argues in his research that Justices of the Supreme Court are nominated by examining four main factors. Senators’ votes are influenced by the strength of the president, by whether the senator is a member of the president’s party, by whether the nominee is viewed as highly qualified and finally their ideology which is seen as a paramount concern to senators.10 Attempting to understand how and why Senators vote the way they vote and Presidents nominate who they nominate, it is important to look back on transformative moments in history that infused ideology and philosophy in the appointment process.
Robert H. Bork
Born in Pittsburgh, Robert Bork had a considerable reputation as a conservative law scholar and was a proponent of originalism, the theory that the constitution should be interpreted as written by the founders. Opponents of Robert Bork’s nomination did not question his personal integrity or his professional qualifications for the Supreme Court. Bork taught at Yale University, among his Yale Law students were Bill and Hilary Clinton. In 1973, Bork accepted an invitation from then President Nixon’s administration to join the Department of Justice as Solicitor General. The former academic, attorney and federal judge then wound up as acting Attorney General of the Justice Department after what is now known as the “”Saturday Night Massacre””. After then Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus refused to fire Watergate Special Prosecutor Archibald Cox, Robert Bork assumed the position when both men resigned in protest. Bork as the Attorney General ordered the firing, which averted a further constitutional crisis.
Robert H. Bork was one of the few nominations by a president to not attain a seat on the Supreme Court. The Bork nomination, political scientists have long argued ushered in a new regime in the Senate consideration of presidential nominees; one that de-emphasizes ethics, qualification, competence and integrity and stresses instead politics, philosophy and ideology. Following Robert Bork, Clarence Thomas was nominated to the Supreme Court in 1991 by President George Bush. Thomas’ confirmation hearings were perhaps the most heated and controversial, even surpassing the likes of Robert Bork only 4 years removed. Although the nomination of Robert Bork was one that caused major concern with the direction of appointments, presidents have traditionally been able to overcome the constraint congress places on them. What transpired politically from the nomination process of Robert Bork and Clarence Thomas is now used as a political tool simply known as blaming.
Following the confirmation hearings of both men, polls taken suggest that a large proportion of respondents were displeased with the way the Senate handled the confirmation process.7 Data shows, 60% of respondents reported that senators “”looked ridiculous”” during the Clarence Thomas hearings, 57% thought the Senate Judiciary Committee treated Robert Bork unfairly, and 50% disapproved of the way the Senate handled the Thomas nomination.7 What this suggests between the dynamics of Presidential nominations and the action of congress is that the obstructionist route may be electorally costly for senators. Similarly, Blinder and Smith suggest there are myriad other costs associated with the use of the filibuster to the individual congressmen and their respected party. In principle, the Bork nomination is seen by political scientist as a transformative point in confirmative politics. Evidence shows that the subsequent years after the controversial nomination of Robert Bork, the number of days from nomination to confirmation nearly tripled.
Generally, the Senate exercises its “”consent”” of a nominee in two steps. The Senate Judiciary committee collectively consider the merits and qualifications of a nominee and then votes on whether to give a positive or negative recommendation. Following the Judiciary Committee’s vote, the Senate body reviews the same merits and qualifications and votes on the appointment. Under what would be normal considerations, the vote is simply a majority vote to confirm or fifty-one votes by the Senate. A filibuster is now used as a technique by the minority party of the Senate to block a floor vote of a legislation or a presidential nominee. The Standing Rule of the Senate allows the indefinite filibuster, unless there is a sixty Senator vote to end the debate. The filibuster is an example of inefficient infighting in politics that effect the everyday lives of ordinary citizens. Government is stagnant while sitting judges are overworked due to the increase of vacancies and long confirmation process’. The filibuster could also be seen as a tool that tempers majority rule by necessitating debate and attention to minority view points. In contrast, the filibuster can be countered with the “”nuclear option””. Under this proposal, the Chair of the Senate, or the Majority leader, can modify the rules of the Senate in order to thwart filibuster against judicial nominees. The Framers considered the Senate a higher-minded institution, by removing the option for a filibuster with the nuclear option, the Senate body of congress becomes nothing more than the House of Representatives, strictly aiming at majority votes.
Politics in the Appointment/Consent Process
The framers anticipated that Justices appointed to the Supreme Court would be subjected to political scrutiny. James Madison warned against factions in the Federalist Papers, cautioning for the potential dangers of factional politics. He anticipated religious and economic conflicts among legislators that were as divisive as disagreements of abortion and economic policy today. John Adams and Alexander Hamilton expressed mutual concern with leaving appointments to the Senate. They argued that political dealing would obscure the merit of the candidate. Charles Schipan proposes four dynamics of the senate vote for Supreme Court nominees that illustrate the correlation of those of our founders and scholars today. The first is ideology, Senators typically align their support to a potential Justice who shares a similar ideological view point. The second is qualification, which is what our framers hoped would prevail during the consent stage of nominations. The more qualified a nominee, the more likely a senator is to vote for him or her. The third is presidential strength. When understanding political capital, the stronger a president is to government and the people, the more likely a Senate body will vote for their nominee. Last, Senators from the same party as the president are more likely to support his or her nominee.
The selection of a Supreme Court justice begins with an opening on the Court to appease the death or retirement of a justice. General Analysis of the Appointment process focuses on the Senate rather than the president. Moraski and Shipen argued the Senate vote is more likely to be conflictual when the nominee is ideologically in difference with the sitting body of congress. The preference of constituencies and interest groups and the ideology of the departed justices also plays a significant role in consent process. Thomas Phillip O’Neil once suggested that all politics is local politics. Richard Fenno reaffirmed this theory in his own description of local politics. He suggested representatives think about their own constituencies because they seek support for their own reelection. For most members of Congress, gaining local support is the merely the prerequisite for a congressional career. The electoral goal is achieved not in Washington but at home. Understanding the ideologies and political preferences of constituencies almost forces Senators to vote based on their constituency preferences over the nominee’s merit or qualification.
The Senate as a Public Forum
It is important to note who the Senate body generally represents. The final function of the Senate is to provide a forum in which members of the public can express concern or support for a nominee. The growth in public participation in the process of government as a whole, and the impact the Court has on everyday American life, make it a necessity for the public to voice their opinion in the appointment process. In regard for advocacy, the Senate provides a forum for three groups; the bar association, special interest groups and private citizens. Representatives of the Bar Association provide their own opinion on their preference for an open seat of the Supreme Court. For instance, the American Bar Association endorsed Justice Stevens on the merits of his qualifications. In addition to endorsements, the Bar Association have used severe criticism to cripple the nomination of Haynsworth and Carswell. As interest groups develop a strong hold in American politics, various groups have sent representatives to testify before the Judiciary Committee. The National Organization for Women has been prominent at several hearings. The group opposed Stevens, Carswell and Rehnquist in 1968, but endorsed O’connor. In both 1971 and 1986, the National Association for the Advancement of Colored People (NAACP) opposed Rehnquist. The testimony of special interest groups is vulnerable to criticism because they generally endorse or oppose certain nominees based solely off of one single issue. Most often the issue is in line with what the group advocates against. However, the testimony of these interest groups is important because it provides the Senate with additional information concerning the view of the public. Perhaps a single testimony of one interest group may not persuade a Senator to vote a certain way, but the cumulative effect of special interest groups might influence a vote.19 Finally, the Senate provides a forum for the opinion of individual citizens. Justice Frankfurter in 1939 experienced testimony heard by the committee from a succession of witnesses including right wing activists, a carpenter, a housewife, and an American Indian representative.13 Although participation from the general public may not necessarily change the vote of Senator’s, ordinary citizens have a voice in a process that has such a significant impact on their lives. Senators then use these various points of views that align politically with their own ideals to vote for or against nominees over basic qualification and merits of the candidate. This further emphasizes a shift of appointments that prove to appease political views, views the Framers attempted to avoid at all costs.
Politics of Presidential Nominees
Presidents earn political capital through various aspects of the presidency. Richard Neustadt argued the Presidents informal powers reign supreme. On the other hand, Political Science Scholar Edward Corwin argues a different direction, citing legal authority granted by the Constitution, Congressional Legislation and Supreme Court case law lay the foundations of presidential powers. Timothy Johnson and Jason Roberts suggest power comes from public approval ratings and margin of victory from recent elections. When these margins increase, Presidents gain political capital that they then can use to overcome a hostile Senate and garner congressional support for their domestic agenda. With a President’s popularity growing among the American public, their capital grows allowing them more success at securing confirmations for their Supreme Court nominee. With strong public support, legislators find it difficult to vote against or filibuster a presidential nominee because it could prove detrimental to their own reelection campaign. Political capital is especially important during what scholars call the honeymoon phase of the presidency. Following an election or reelection, presidents find it much easier to have appointments confirmed by the Senate along with having Congress defer to policies on the president’s agenda. Samuel Kernell also makes the point that “”going public”” may be a tool president’s use to change votes on confirmation in Congress. Going public is another tool used by Presidents wherein they have direct dialogue with the American people through the introduction of media outlets. Starting with President Franklin Roosevelt with the radio, to John F. Kennedy and the television, to today’s use of Twitter by President Donald Trump.